House Panels Race Against Each Other to Reform NSA Spying

By Dustin Volz

May 6, 2014

After months of inaction, Congress is suddenly barreling ahead with proposed reforms to the government's surveillance programs, as two House panels duel to get their preferred bills out of committee and onto the floor.

The House Judiciary Committee announced Monday that it would bring an amended version of its stalled anti-NSA bill up for a vote Wednesday. Just hours later, the House Intelligence Committee responded, announcing it had slated a markup of its own anti-spying bill for a closed session Thursday.

The Judiciary Committee's USA Freedom Act would effectively end the bulk collection of telephone metadata. It's supported by privacy and civil-liberties groups that see it as the best option to be introduced in Congress thus far, though the amended compromise released Monday is less sweeping than the original.

One tech lobbyist noted concern that a provision that would have allowed companies to disclose to customers more information about government data requests has been dropped. In addition, an external special advocate that would oversee the Foreign Intelligence Surveillance Court would no longer be selected by the Privacy and Civil Liberties Oversight Board. Instead, the court's judges would designate five "amicus curiae" who possess appropriate security clearances.

"The details still need to be hammered out, but the [amended Freedom Act] bill is certainly better than the one that the House Intelligence Committee will be considering this week, which is a non-starter," said Laura Murphy, director of the American Civil Liberties Union's legislative office in Washington, in a statement.

The Intelligence panel's FISA Transparency and Modernization Act would usher in some reforms favored by the same groups but it does not go as far, as it would notably allow the government to make phone companies turn over metadata records even before the Foreign Intelligence Surveillance Court issued an approving order. It is favored more by backers of a a strong national security apparatus.

Amid the policy differences, the competing bills underscore a behind-the-scenes jurisdictional feud pitting some of the NSA's most vocal critics on the Judiciary panel against some of its longtime defenders on the Intelligence Committee.

That rupture first emerged after President Obama in March specified how he intends to reform the NSA. Days later, Intelligence Committee Chairman Mike Rogers, a Michigan Republican, and Dutch Ruppersberger, the panel's top Democrat, introduced their bill, which closely adheres to Obama's proposal. That bill was quickly referred to the Intelligence panel for consideration by the House parliamentarian.

But some Judiciary members and staffers cried foul, saying that matters involving the legal authority of the intelligence community should—and normally do—fall under their primary jurisdiction. The move was seen as an intentional attempt to cut the largely anti-surveillance panel out of a debate over how to reform the NSA's program that collects bulk telephone data.

Rep. Jerrold Nadler, a Democrat, issued a statement at the time saying that "the House Judiciary Committee must be the primary committee at the center of this reform."

An Intelligence panel aide said plans to move ahead with ithe FISA Transparency bill have been in the works for weeks and that the scheduling of the markup was not in direct response to the Judiciary's schedule.

Whatever the politics, two bills aiming to curb the NSA's controversial surveillance tactics are suddenly advancing through the House, almost a year after Edward Snowden's initial leaks began to surface. Privacy advocates see the Freedom Act as a preferred option, but the FISA Transparency bill more closely aligns with what the president wants. The Freedom Act currently has 143 cosponsors; FISA Transparency has 11.

Sen. Patrick Leahy has sponsored a companion version of the Freedom Act in his chamber, but it has yet to gain much traction there. No companion bill to FISA Transparency currently exists in the Senate.